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http://www.nytimes.com/2008/12/10/nyregion/10arar.html?_r=1&scp=2&sq=maher%20arar&st=cse

 

December 10, 2008

Appeals Court Hears Case of Canadian Citizen Sent by U.S. to Syria

By BENJAMIN WEISER

Even if the government agreed with a Canadian citizen’s claims that American officials sent him to Syria in 2002 to be tortured, he should not be allowed to sue for damages because there was no Constitutional violation and Congress has not authorized such lawsuits, a Justice Department lawyer argued on Tuesday before a federal appeals court in Manhattan.

The lawyer, Jonathan F. Cohn, added emphatically that the government did not agree with the claims made by the man, Maher Arar, who has been trying to sue for the deprivation of his rights. His case has come to symbolize the hotly debated government policy, known as extraordinary rendition, of moving terror suspects to countries that engage in torture.

Mr. Arar, who was detained in September 2002 as he changed planes at Kennedy International Airport on his way to Canada from a vacation in Tunisia, was later sent to Syria, where he spent a year in confinement and, he says, was tortured.

He was released in 2003, and Canadian officials later concluded that he had had no involvement with terrorism.

A suit filed by Mr. Arar was dismissed in 2006 by a federal judge in Brooklyn. That ruling was affirmed in June by a three-judge panel of the United States Court of Appeals for the Second Circuit.

The panel found, by a 2-1 vote, that the case was largely an immigration matter, that Mr. Arar could not sue for damages, and that his possible remedy would be under immigration law.

But in a highly unusual step, the appeals court decided to rehear the matter, and on Tuesday 12 judges engaged in a spirited debate with Mr. Cohn and Mr. Arar’s lawyer — and with one another — over whether Mr. Arar could sue.

Mr. Arar’s lawyer, David D. Cole, argued that American officials had not only sent Mr. Arar to Syria to be tortured in order to make him talk, but that before doing so, while he was detained here, they kept him from seeking help in the legal system.

“Having successfully kept Mr. Arar out of court while they had him in their custody,” Mr. Cole said, “defendants now ask this court to deny any claim for relief because he did not pursue the very avenues of judicial redress that they blocked him from pursuing. That Catch-22 can not be, and is not, the law.”

Mr. Cole argued on behalf of the Center for Constitutional Rights, which has been representing Mr. Arar. He said that to dismiss the suit “would be to reward obstruction of justice and to deny protection of the most fundamental human right, the right not to be tortured.”

Mr. Cohn, a deputy assistant attorney general, said that the court should wait for Congress to act before allowing such suits. He also cited another factor weighing against Mr. Arar.

“This case is inextricably intertwined with foreign policy and national security,” he said.

At one point, Judge Barrington D. Parker Jr. observed that the court frequently considered cases that raised foreign policy concerns, like those in which noncitizens claimed they would be tortured or persecuted if sent back to their home countries.

“When we grant asylum petitions, we’re making comments in the international arena about how other countries run their affairs,” Judge Parker said.

Another judge, Guido Calabresi, asked how the case could be treated as an immigration matter when Mr. Arar stopped only to change planes, not to move to this country.

“What I don’t understand is how it is immigration when somebody doesn’t want to come here,” he said.

The hearing ended after nearly three hours, with no indication of when the judges might rule. Judge Rosemary S. Pooler asked Mr. Cohn whether the Obama administration might bring a new view to the case.

“Are you certain,” she said, “that the change of administration will maintain this position that you’ve argued to us?”

Mr. Cohn said he could not say, but added that while the case was before the court, “this court should decide the case.”

Mr. Arar did not attend the hearing, but said by phone from Canada that he watched most of it on the Internet. He said he felt a number of the judges might be looking at the case differently, and not just as an immigration matter. “It is my hope that this is the case,” he said.

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Copyright 2008 The New York Times Company

 

Statement of Maher Arar, 12/9/08

 

I would like to thank everyone for being here today to demand justice in

my case and to call for an end to extraordinary rendition and torture.

 

I am a father, a husband, an engineer, and a Canadian citizen. Six years

ago, when I was changing planes at JFK Airport on my way home from a

vacation with my wife and two young children, I was interrogated and

detained by U.S. officials. I was asked to voluntarily go to Syria, but

I refused, and repeatedly told the officials that I would be tortured if

sent to Syria, where I had not been since I was a teenager. After two

weeks, I was told that based on classified evidence, I had been found to

be an Al Qaeda member, and was being sent to Syria – I was told this on

my way to the jet. I was denied the right to go to court to challenge

what was happening to me. In Syria I was whipped and beaten and held in

a filthy, dark underground grave-like cell that was 3 feet wide, 6 feet

long and 7 feet high, and not released until a year later. The torture I

endured still haunts me. My life, my reputation, and my career were

destroyed.

 

Your solidarity means a tremendous amount on this very important day. It

shows how much concern there is among the American people about what

happened to me, and what the Bush Administration has been doing in your

names. You send a message that the American public rejects rendition and

torture, and stands for justice. We cannot take our human rights for

granted – we need to remain persistent in fighting for them.

 

Today, the judges have the opportunity to listen to why my case must be

heard, and why justice must be done. I hope that they will allow my case

to proceed against the United States officials responsible for sending

me to torture. In order for torture to stop and rights to be respected,

those officials must be held accountable. Thank you again for being

here, and for your efforts to ensure that what happened to me does not

happen to others.

 

--

Matthew W. Daloisio

daloisio@riseup.net

 

New York Catholic Worker - Maryhouse

55 East 3rd Street, NY, NY 10003

Witness Against Torture - www.witnesstorture.org

War Resisters League - www.warresisters.org

Friends of 339 – www.peacepentagon.org